State v. Kinsey

193 S.E.2d 430 (1972) 17 N.C. App. 57

STATE of North Carolina
v.
Roosevelt KINSEY.

No. 728SC713.

Court of Appeals of North Carolina.

December 20, 1972. Certiorari Denied February 6, 1973.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. H. A. Cole, Jr., for the State.

Perry, Perry & Perry by Warren S. Perry, Kinston, for defendant appellant.

Certiorari Denied by Supreme Court February 6, 1973.

CAMPBELL, Judge.

Defendant contends that there were many errors committed during the trial and sets out nine questions. We do not find it necessary to discuss in detail each of the questions presented.

With regard to the armed robbery charge, the defendant contends that there was insufficient evidence to convict him of this charge and that there was fatal variance in the bill of indictment, as he was charged with armed robbery, and the evidence only showed an attempt at armed robbery. There is no merit in this contention. "If all of the elements are present, the offense is complete whether the taking is successful or amounts only to an attempt to take personalty from the victim." State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964); State v. Jenkins, 8 N.C.App. 532, 174 S.E.2d 690 (1970).

With regard to the assault charge the defendant contends that there was error in not submitting to the jury a lesser offense as there was no evidence sufficient to establish serious injury. Whether the injury is "serious" depends upon the facts in each case. We find no error in the instant case, and the ruling is controlled by the principles enunciated in State v. Parker, 7 N.C.App. 191, 171 S.E.2d 665 (1970).

Still another contention of the defendant is to the effect that he was tried and convicted of two separate offenses whereas in truth and in fact there was only one offense, and thus error was committed. The defendant says that since an assault with a deadly weapon is a part of and necessary for the commission of armed robbery, he could not be convicted of the assault as a separate offense. This question was presented and thoroughly discussed in State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971). Nothing would be gained by a further discussion; and since in this case serious injury was done in the assault, we hold that the Richardson case controls.

We have considered all of the other questions presented by the defendant and find them to be without merit.

We hold that the defendant had a fair and impartial trial free from prejudicial error.

No error.

MORRIS and PARKER, JJ., concur.